Voliva v. Bennett, 14099.

• Decision Date: 02 March 1953
• Docket Number: No. 14099.,14099.
• Citation: 201 F.2d 434
• Parties: VOLIVA v. BENNETT.
• Court: U.S. Court of Appeals — Fifth Circuit

201 F.2d 434 (1953)

VOLIVA v. BENNETT.

No. 14099.

United States Court of Appeals Fifth Circuit.

January 29, 1953.

Rehearing Denied March 2, 1953.

John G. Simms, Miami, Fla., Johnson & Wiles, Chicago, Ill., of counsel, for appellant.

James W. Pritchard, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and STRUM and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Appellant, plaintiff below, is the widow, and appellee, the daughter by a former marriage, is the only child, of Wilbur Glenn Voliva, with whom appellant had lived in harmonious wedlock from 1916 until his death in 1942.

Alleging: "The defendant has in her possession or under her control approximately 1875 shares of common stock of Zion Industries, Inc. * * * or the proceeds thereof, which stock or the proceeds thereof is actually the property of plaintiff as more fully hereinafter set forth,"¹ appellant sued for an accounting as to, and return thereof.

On June 8, 1950, the defendant promptly filed a motion to dismiss the petition, containing, among others, these grounds: (1) that the complaint fails to state a claim against defendant upon which relief could be granted; (2) that the statutes of limitation of Florida have barred the action; (3) that the complaint shows on its face that the plaintiff was guilty of laches; and has consented to the complained of acts of the defendant.

This motion coming on for hearing on March 27, 1952, nearly two years later, an order was entered dismissing the complaint without leave to amend, and plaintiff, appealing from that order, is here insisting that it was error to dismiss the complaint and more grievous error to dismiss it without leave to amend.

In opposition to the first ground of the motion, that the complaint fails to state a recoverable claim, appellant, invoking the decisions holding that, as against a motion to dismiss on the ground of no cause of action, the allegations of a complaint must be construed most favorably to the pleader, insists that the first ground was without merit.

As to the second ground of the motion, that the action was barred by the statutes of limitation, appellant, pointing out that the suit is not in law but in equity, insists that the invoked statutes are without application.

Finally, as to the third ground, that the suit is a stale demand and laches has barred it, appellant, though the complaint shows on its face a delay of thirteen years after the alleged wrongful action and of eight years after the death of her husband, before bringing suit, insists that nothing more is shown than mere lapse of time, and that lapse of time alone is not sufficient ground for dismissing a cause for laches.

For the reasons hereinafter briefly stated, we cannot agree with these views.

Giving the fullest permissible effect to appellant's claim that her complaint should be liberally construed in her favor, we cannot agree that it stated a reasonable claim. This is so because, instead, as she could have done, of relying upon the general statement of her claim, with which she begins her complaint, plaintiff descended to details in pleading the facts upon which she relies, and it is to the facts, rather than to the conclusions alleged, that we must look in determining whether, if proven, they would support recovery. Cf., Simmons v. Peavy-Welsh Lumber Co., 5 Cir., 113 F.2d 812, at page 813. When these are looked to it will be found that, instead, as required by Rule 9, Par. (b),² Federal Rules of Civil Procedure, 28 U.S.C.A. and by decisions dealing with actions for fraud, of alleging facts constituting fraud, the complaint contains only conclusions and no single fact showing or tending to show fraud.

What and all that is alleged, except by way of conclusion, is that plaintiff's signature was given at the request of her husband because of her respect and affection for, and confidence in, him, and because the long training of her life with him as head of her church and household had habituated her to conforming to his wishes and created an unwillingness to oppose him.

All that appears from the complaint is: that the stock which her husband had at first placed in trust for her had been released from that trust and disposed of in favor of his daughter; and that, after this was done, plaintiff, during the last five years of his life and for eight years after his death, did nothing...